Trump impeachment lawyer says Capitol riot had ‘nothing’ to do with him

Trump impeachment trial: The 13 biggest takeaways from Democrats’ pre-trial brief

Democrats lay out their case against the ex-president

Griffin Connolly
Washington
Tuesday 02 February 2021 22:12
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The Democratic House impeachment managers have laid out their case against Donald Trump in a comprehensive memorandum accusing him of inciting a bloody insurrection at the US Capitol on 6 January.

The 80-page document provides a roadmap for their prosecution of the former president when the Senate impeachment trial kicks off on 9 February.

The memo is scathing in its rebuke of Mr Trump’s actions, recounts harrowing details about the attack on the Capitol, and argues Mr Trump, its chief architect, should never be allowed in public office again.

Here are 13 key takeaways from the House Democratic impeachment managers’ case against the ex-president:

1. This impeachment is about setting precedent

The third sentence of the managers’ memo encapsulates their appeal to the Senate to convict Mr Trump for his actions throughout 2020 and leading up to 6 January: We must set a precedent that this conduct must never be repeated.

“To protect our democracy and national security—and to deter any future President who would consider provoking violence in pursuit of power—the Senate should convict President Trump and disqualify him from future federal officeholding,” the memo states.

The document later suggests that if Congress doesn’t draw the line against abuse of power on this impeachment, it’d be hard to think of any future situation in which a president could be removed.

“If provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be,” the managers argue.

2. The pro-Trump mob attack was months in the making

Key to the Democrats’ case is their argument that the 6 January riot at the Capitol was not some spontaneous uprising, but rather a carefully sown and watered movement — cultivated by Mr Trump.

“After losing the 2020 election, President Trump refused to accept the will of the American people. He spent months asserting, without evidence, that he won in a ‘landslide’ and that the election was ‘stolen,’” the managers write.

"He amplified these lies at every turn, seeking to convince supporters that they were victims of a massive electoral conspiracy that threatened the Nation’s continued existence.”

The courts rejected nearly every challenge, the managers point out.

That did not matter to his supporters.

“By the day of the rally, President Trump had spent months using his bully pulpit to insist that the Joint Session of Congress was the final act of a vast plot to destroy America. As a result — and as had been widely reported — the crowd was armed, angry, and dangerous.”

Throughout 2020, “he insisted at rallies and through social media that if he appeared to lose the election, the only possible explanation was a conspiracy to defraud him and those who supported him,” the managers write.

One of several examples they cite comes from a speech from the president on 17 August 2020 : “The only way we’re going to lose this election is if this election is rigged.”

3. Blocking an impeachment trial is both illogical and unconstitutional

Several Senate Republicans — 17 of whom the impeachment managers will need to win over to successfully convict Mr Trump with the requisite two-thirds majority —  have already acknowledged that Mr Trump bears some responsibility for inspiring the Capitol insurrection on 6 January.

But they have been publicly sceptical that the Constitution allows a former president to be put on trial in the Senate — a tenuous legal position, most constitutional scholars from across the ideological spectrum agree, but one they are entitled to since each senator acts as his own judge and jury in an impeachment trial.

And some, such as Senator Marco Rubio of Florida, have argued that the impeachment trial, irrespective of the evidence, will only serve to further divide the American populace along partisan lines.

“I think the trial is stupid. I think it’s counterproductive. We already have a flaming fire in this country and it’s like taking a bunch of gasoline and pouring it on top of the fire,” Mr Rubio said in an interview with Chris Wallace of Fox News last month.

Democrats seek to address those arguments in their brief.

“The Constitution governs the first day of the President’s term, the last day, and every moment in between. Presidents do not get a free pass to commit high crimes and misdemeanors near the end of their term,” they write.

As for the argument of whether the Constitution allows a former federal official from being impeached, the House managers’ brief highlights multiple cases throughout US history where a former official has been tried.

The memo also highlights the obvious loopholes for justice permitted by a reading of the Constitution that prohibits post-service trials.

“The Constitution does not allow officials to escape responsibility for committing impeachable offenses by resigning when caught, or by waiting until the end of their term to abuse power, or by concealing misconduct until their service concludes,” the impeachment managers argue.

What’s more, they point out, the language of the Constitution plainly states in Article I, Section 3, Clause 6: “The Senate shall have the sole Power to try all Impeachments.”

Tuesday’s memo highlights several scholars, including former federal judges appointed by Republican presidents, who have written extensively on how that phrase provides the managers with standing for this trial and others in the past.

4. The brief invokes conservative authorities

The managers cite prominent Republican leaders to support their case, including one who will be hearing and deciding on their evidence, Senate Minority Leader Mitch McConnell.

It quotes Mr McConnell, who said last month “[t]he mob was fed lies” and “provoked by the president.” The memo also cites several judges, including some appointed by Mr Trump himself.

“Judges at all levels — including several of President Trump’s own judicial appointees — found that his claims [of election fraud] were ‘not credible,’ ‘without merit,’ and ‘flat out wrong.’ Courts warned that some of his suits improperly aimed to ‘breed confusion,’ ‘undermine the public’s trust in the election,’ and ‘ignore the will of millions of voters,’” the managers write in one particularly searing passage.

5. The memo relies heavily on media reports exposing Trump’s behind-the-scenes efforts to overturn the election

Tuesday’s memo contains 293 footnotes to sources, most of which link to recent media reports about Mr Trump’s backroom dealings to overturn the 2020 election and the chaos and fallout of the 6 January insurrection.

Key to the Democrats’ evidence is the transcript of the president’s phone call with Georgia Secretary of State Brad Raffensperger, which was first published by the Washington Post.

It also refers to a leaked memo from Attorney General William Barr’s office authorising prosecutors to investigate voter fraud claims. The New York Times  was first to uncover that memo.

6. Trump’s rhetoric leading up to the 6 January rally was explosive

The impeachment managers’ memo includes numerous instances of Mr Trump deploying militant language to spur his supporters to “action” to stop Democrats from “stealing” the election from him.

On Twitter, he suggested voter fraud was an “act of war,” and tacitly urged supporters to “fight to the death”:

“If a Democrat Presidential Candidate had an Election Rigged & Stolen, with proof of such acts at a level never seen before, the Democrat Senators would consider it an act of war, and fight to the death. Mitch & the Republicans do NOTHING, just want to let it pass. NO FIGHT!” the president tweeted on 26 December.

The memo highlights another instance from 4 January, when Mr Trump “gave an angry speech in Dalton, Georgia, warning that ‘Democrats are trying to steal the White House … [y]ou can’t let it happen. You can’t let it happen,’ and ‘they’re not taking this White House. We’re going to fight like hell, I’ll tell you right now.’”

7. Trump likes political violence

The Democrats plan to argue that the events of 6 January and Mr Trump’s reported glee while watching the insurrection unfold fit a larger pattern of the president encouraging and abetting political violence.

“As the Capitol was overrun, President Trump was reportedly ‘delighted,’” the memo states, citing reporting from several news outlets about the president’s reaction in real time to the chaos at the Capitol.”

The president’s penchant for violence and intimidation tactics was well-documented long before the storming of the Capitol, the memo alleges.

“It was clear that President Trump was comfortable urging, approving, and even celebrating violence,” the document states.

Democrats cite his command to the Proud Boys on the debate stage with Joe Biden on 29 September to “stand back and stand by.”

And on 30 October, when a caravan of the president’s supporters in Texas menaced a bus full of Biden campaign workers, nearly running it off the highway, the president “tweeted a stylized video of the caravan and captioned it, ‘I LOVE TEXAS!’” the memo reminds its readers.

“[Forty-nine] Days later, he declared that ‘these patriots’ — who could easily have killed a busload of innocent campaign staff — ‘did nothing wrong,’” the memo states.

8. Trump and the White House knew the march on the Capitol would be bloody — but did nothing

The mobilisation effort for the MAGA march on the Capitol on 6 January was “widely discussed on websites — such as TheDonald.win — that, as confirmed by a former White House staff member, were “closely monitored” by President Trump’s social media operation,” the memo states, citing an article penned by The Independent’s Andrew Feinberg.

TheDonald.win webpage was home to “hundreds of posts about plans for the attack on the Capitol, with detailed discussions of weaponry and directions to ‘find the tunnels’ and ‘arrest the worst traitors,’” the memo alleges.

Even at Mr Trump’s own rally, the intentions of many in the crowd he himself was exhorting were undeniable, the managers argue, citing videos posted to social media at the time: “Immediately after President Trump told the crowd that ‘you’ll never take back our country with weakness,’ and that ‘[y]ou have to show strength,’ supporters can be heard loudly shouting ‘take the Capitol right now!’ and ‘invade the Capitol building!’” they write.

“At another point, the crowd interrupted him with chants of ‘Fight for Trump!’ The President did not try to soothe their aggression, but instead smiled and responded, ‘Thank you.’”

9. It’s an emotional appeal

The impeachment managers’ memo recounts in harrowing detail the violence and fear inside the Capitol as the mob menaced lawmakers, staff, journalists, police, and others.

As rioters stampeded through the Capitol complex, Congressman Jamie Raskin, the lead impeachment manager, “asked his chief of staff to protect his visiting daughter and son-in-law ‘with her life’— which she did by standing guard at the door clutching a fire iron while his family hid under a table,” the managers write.

“Speaker Pelosi’s staff hid under a table with the lights turned off for hours while they could hear rioters outside in the Speaker’s office,” they added.

They included another detail that is certain to provide shock value and draw out an emotional response from many senators who are set to hear their case:

“One insurrectionist paraded the Confederate battle flag through the Capitol halls—an act that thousands of troops gave their lives to prevent during the Civil War.”

10. Rioters took Trump’s words literally

The impeachment managers will argue during the trial in the Senate that Mr Trump ought to have known his militant followers would take his words as direct orders.

Which they did.

“After the insurrection, one participant who broke into the Capitol wearing combat gear and carrying zip ties stated that he acted because ‘[t]he President asked for his supporters to be there to attend, and I felt like it was important, because of how much I love this country, to actually be there,’” the memo states.

Another woman quoted by the impeachment managers later told authorities: “I thought I was following my President. … He asked us to fly there, he asked us to be there, so I was doing what he asked us to do.”

11. Trump relished the attack on the Capitol and initially did nothing to stop it

The impeachment managers intend to provide evidence Mr Trump not only organised and incited the riot, but he failed to protect members of Congress — even his own political allies — once it had spiralled out of control.

“Senior administration officials described President Trump as ‘delighted’ and reported that he was ‘walking around the White House confused about why other people on his team weren’t as excited as he was as you had rioters pushing against Capitol Police trying to get into the building,’” Tuesday’s memo states.

It eventually took the intervention of his chief of staff, Mark Meadows, to prod the president into taking some kind of action. “They are going to kill people,” Mr Meadows told Mr Trump, according to the memo.

The report concludes that Trump’s inaction during the riot was a direct assault on the Constitution: “Not only did President Trump fail to issue unequivocal statements ordering the insurrectionists to leave the Capitol; he also failed in his duties as Commander in Chief by not immediately taking action to protect Congress and the Capitol. This failure occurred despite multiple members of Congress, from both parties, including on national television, vehemently urging President Trump to take immediate action.”

What’s more, since the attack, the president “has shown no remorse” about his actions leading up to and during it.

12. Trump’s post-election power grab was what the American Founding Fathers ‘feared more than anything’

In an effort to appeal to those Republican senators who fancy themselves originalists, Mr Raskin and his impeachment managers will argue that the very people who drafted the Constitution would have been appalled by Mr Trump in the lame duck session, and would have endorsed the ensuing impeachment.

“Their worldview was shaped by a study of classical history, as well as a lived experience of resistance and revolution. They were well aware of the danger posed by opportunists who incited mobs to violence for political gain,” the managers write in their memo.

“They would have immediately recognized President Trump’s conduct on January 6 as an impeachable offense.”

13. Trump’s actions weren’t just a direct threat on Congress — they were a direct threat on American democracy

The impeachment managers are not likely to let senators forget for one second during the trial what was supposed to be happening as pro-Trump rioters ran amok through the Capitol on 6 January.

“President Trump’s incitement of insurrection disrupted the Joint Session of Congress as it performed its duty under the Twelfth Amendment to count the Electoral College votes,” the memo plainly states.

The riot interrupted the US’ most sacred tradition of a peaceful transfer of power, a tradition that had gone unbroken from John Adams’ inauguration on 4 March 1797 until last month.

The framers of the Constitution “anticipated impeachment if a President placed his own interest in retaining power above the national interest in free and fair elections,” the managers note, citing historical analyses of statements delivered by Founding Fathers George Mason, William Davie and others.

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